In an increasingly complex and interconnected world, the law is no exception. On Balkinization, Sandy Levinson meditates on the intellectual mettle of SCOTUS:
For better or worse, incidentally, those students who arrive at law school “insufficiently” trained in economics, are in effect forced to pick up skills in basic economic analysis, given the pervasiveness of “law-and-economics” in every aspect of the contemporary legal curriculum, including constitutional law. But this is not at all true, say, of picking up the skills necessary to analyze complex data and statistical argument. (Ans so we get the suspender-snapping prideful illiteracy of Chief Justice Roberts, who dismisses such argument as “gobbledygook” irrelevant to understanding the realities of contemporary gerrymandering, etc.) And, frankly, even those students who took some American history as undergraduates are increasingly likely to know only American social history. As important as that is, one can still lament that fewer and fewer students are really familiar with what today seems a decidedly old-fashioned knowledge of American political history or even American i(or more general) ntellectual history insofar as that almost necessarily focuses on books written by highly literate members of elites who could get their scribblings published.
It is often painful enough to read debates among the justices about the meanings of past precedents. See, e.g., the shouting match between Chief Justice Roberts and Justice Breyer about Brown in Parents Involved (where I believe Breyer was clearly correct, for what that’s worth). It is excruciating, though, to read debates among the justices about controverted aspects of our history, as in the opinions of Scalia and Stevens in Heller. As I wrote at the time, neither opinion would have been admissible as a paper in a half-way rigorous seminar on legal history at a major university. It appears clear that the same is true of Gorsuch’s musings on the facts of Schechter, even though he had read a single book, by Amity Schlaes, from which he drew his description of the case. …
One of Mark Tushnet’s most famous descriptions was “the lawyer as astrophysicist,” referring to the belief among the smart people who become successful lawyers, that they can master any subject, however arcane, in a weekend of intense study. (This is linked, I suspect, to the belief that our favorite political candidates can truly master the arcana of complex public policy simply by being “briefed” in some of the details of the subject. What does one really need to know, for example, in order to posit a belief in “Medicare for All” (via single payer or using private insurance, as in a number of European countries), as opposed to tweaking Obamacare (or, indeed, repealing it and beginning with something brand new?) It is easier to presume that our favorites can indeed master the relevant materials than to come to terms with the fact that they really know very little about the subjects in which they are called upon to make crucial decisions. (And when it’s Donald Trump and Boris Johnson, making the decisions, we might well wish instead to have chimpanzees throwing darts at boards!)
I suppose I shouldn’t be entirely surprised, given my and others’ remarks on discouraging opinions by Alito and Kennedy. The failure of the Court to refer to experts and avoid their own preconceptions and biases, however, will reflect poorly on the Court when later versions of the Court overrules those decisions decisively. Ideological zealots may think they’ve fared well, when in retrospect, they fail the test of time.
Complexities of modern life may exceed the capacity of any single human mind to plumb all the depths, and that’s why we have experts and group research.
